132 N.Y.S. 892 | N.Y. App. Div. | 1912
On June 3, 1907, plaintiff entered into a written contract with Hax Rapoport and Charles Ratner for the performance of
The sureties upon a bond given under such circumstances are not liable unless the plaintiff establishes the existence of a valid lien. (Vitelli v. May, 120 App. Div. 448.) The validity of the notice of lien filed by plaintiff is challenged upon the ground that it fails accurately to state how much labor has been performed and how much remains still to be performed, and what quantity of materials has been furnished and what quantity remains to he furnished under the contract, together with the agreed price or value thereof, and that it falsely states the amount unpaid to the lienor for such labor or materials. (Lien Law, § 9.) To determine the true meaning of these provisions of the statute, this section must he readin connection with section 10 of the same act, which provides that “ The notice of hen may he filed at any time during the progress of the work and the furnishing of the materials, or within ninety days after the completion of the contract, or the final performance of the work, or the final furnishing of the materials.” A fair construction of these provisions of the statute requires that if a notice of lien is filed during the progress of the work, such notice should contain a statement of what labor has been performed and what materials have been furnished and what still remains to he done, with the amount unpaid to the lienor under the contract. Unless these provisions of the statute are substantially complied with, the lien is invalid. “A mechanic’s lien never comes into existence unless the
Upon this state of facts we think that the learned court at Special Term correctly decided that the notice of lien was invalid. (Finn v. Smith, 186 N. Y. 465.) At the time when the notice was filed the lienor knew that there was work still to be done and materials still to be furnished, and that to a considerable amount, and he also knew that the sum of $900 claimed by him would riot become due until all of the said materials had been furnished and all of said labor had been performed. This failure to comply with the provisions of the statute as to'the labor still to be performed and the materials, still to be furnished, and the misstatement as to the amount due, could not have been the result of an honest mistake, such as has been held sufficient to excuse a variance in these respects. (Ringle v. Wallis Iron Works, 149 N. Y. 439; Fosters v. Schneider, 50 Hun, 151; Goodrich v. Gillies, 82 id. 18; Felgenhauer v. Haas, 123 App. Div. 75.) In the case of Ringle v. Wallis Ron Works (supra) the court at Special Term found that the error in the statement as to the amount due at the time the hen was filed was the result of an honest mistake as to the true meaning of the contract. In that case it appeared that in connection with the construction of the work for which plaintiff was to be paid more than $3,000, two gangway openings were omitted, the cost of cutting and completing which would be about $35, The court found that at the' time of filing the notice of lien plaintiffs “supposed that they had completed the contract,” and had not “ knowingly and consciously, inserted any false-statements in the notice.” In Goodrich v. Gillies (supra) the court found that the lienor “had reason to believe that all of the materials described in said notice of lien had been actually used.” In this case the plaintiff lienor could not have supposed anything of the sort. It is quite likely that he intended no moral wrong in making the statements which he did in the notice of lien which was filed, but the statements were untrue, were known to him to be untrue, and for
The judgment ¡appealed from .should he affirmed, with costs.
Jenks, P. J., Hirschberg, Thomas and Carr, J.J., concurred.
Judgment affirmed, with costs.